Tennessee is poised to become the first state in the country
to subject women to criminal assault charges if they use drugs during
their pregnancy. Last week, both chambers of the state legislature
passed Senate Bill 1391,
which would ultimately allow the state to scrutinize miscarriages,
stillbirths, and birth defects to try to determine if drugs played a
role.

The legislation is a direct response to recent reports that the number of babies being born addicted to drugs is on the rise. The Tennessee Department of Health tracks incidents of “Neonatal Abstinence Syndrome,”
which is defined as withdrawal symptoms after a baby has been exposed
to opiates in utero. “Over the past decade, we have seen a nearly
ten-fold rise in the incidence of babies born with NAS in Tennessee.
Infants with NAS stay in the hospital longer than other babies and they
may have serious medical and social problems,” the agency’s website states.

That certainly sounds alarming — but medical experts warn it’s also
misleading. Last month, a group of more than 40 researchers and experts released an open letter to set some of the facts straight. They point out
that it’s not scientifically accurate to describe newborns as
“addicted,” NAS doesn’t actually have long-term adverse effects, and
misrepresenting these realities end up unhelpfully vilifying pregnant
women who likely face significant barriers to medical care.

Nonetheless, the Tennessee House and Senate both passed the measure
last week. “It would just seem to me that any society that puts value
on life, that these defenseless children deserve some protection,” Rep.
Terri Lynn Weaver (R), who sponsored the House’s version of the bill,
said.

Weaver’s attitude echoes the national sentiment in the 1980s, when the media stoked unfounded fears about “crack babies” and law enforcement began pursuing pregnant women for using cocaine because they were an easy target in the War on Drugs. Even though there’s no conclusive scientific evidence
that children who were exposed to drugs in utero suffer from long-term
health consequences, it hasn’t really mattered. There have been hundreds of documented cases
of states going after women for allegedly causing harm to their
fetuses. Like many issues within our criminal justice system, these laws
tend to disproportionately impact low-income people of color.

Although other states have used fetal harm laws to charge women with endangering their children based on suspicions that they used drugs while pregnant,
no state has explicitly criminalized drug use during pregnancy. Farah
Diaz-Tello, a lawyer with the National Advocates for Pregnant Women —
which has been fighting against efforts to criminalize pregnant women for years — believes the proposed law could signal the beginning of a slippery slope.

“The law is so broad that it could lead to charges against a woman
who drives recklessly, gets in an accident, and then loses pregnancy. It
could also be used against women who try to self-induce abortions,”
Diaz-Tello told the Daily Beast. “She becomes a criminal due to unlawful pregnancy loss.”

Diaz-Tello’s organization is partnering with a coalition of other Tennessee groups to urge Gov. Bill Haslam (R) to veto SB 1391,
pointing out that it won’t do anything to improve access to medical
care for impoverished families. Only 19 of the state’s 177 addiction
treatment facilities currently provide care for pregnant women, an issue
that SB 1391 doesn’t address whatsoever.

“This law was promoted by prosecutors against the recommendations of
medical professionals and addiction specialists,” Cherisse A. Scott, the
founder of SisterReach and the communications chair for Healthy & Free Tennessee,
said in a statement released by the coalition. “It permits the arrest
and incarceration of any woman who can’t guarantee the birth of a
healthy newborn, and is completely out of step with the most effective
standards of care for maternity care, addiction treatment, and neonatal
care.”

The country’s major medical associations — including the American
Medical Association, the American Academy of Pediatrics, the American
College of Obstetricians and Gynecologists, and the American Public
Health Association — all oppose
criminalizing pregnant women for using drugs. They point out that
punitive laws end up dissuading women from seeking the medical treatment
they need, since they’ll be too afraid of being prosecuted. And
skipping out on prenatal care actually leads to a greater risk of miscarriage, stillbirth, and infant death.

Last May, Tennessee opted to take a very different approach to pregnant women using drugs. The Safe Harbor Act of 2013
focuses on getting women into drug treatment, and ensures that they
won’t lose custody of their children if they seek help. Advocates point
out that there hasn’t been enough time to observe the effects of the Safe Harbor Act, and lawmakers are rushing to pass additional legislation too soon.

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